Mohan v. Norris, 88

• Court: Court of Appeals of Maryland
• Citation: 386 Md. 63,871 A.2d 575
• Docket Number: No. 88,88
• Parties: Andrew A. MOHAN v. Edward T. NORRIS, et al.
• Decision Date: 04 April 2005

871 A.2d 575
386 Md. 63

Andrew A. MOHAN
v.
Edward T. NORRIS, et al

No. 88, September Term, 2004.

Court of Appeals of Maryland.

April 4, 2005.

Sandra J. Strebel, Patrick J. McAndrew (McAndrew, Zitver & McGrath, P.A., on brief), Greenbelt, for petitioner.

Betty A. Stemley, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondents.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

HARRELL, J.

We issued a writ of certiorari in this case to consider whether a police officer,

871 A.2d 576

although unconditionally certified by the Maryland Police Training Commission ("MPTC"), nonetheless is denied the protections of the Law Enforcement Officer's Bill of Rights ("LEOBR") during that officer's initial probationary status as required by his or her employing police agency. For reasons to be explained, we conclude that such an officer, while in a probationary status with his or her police agency employer upon his or her initial hiring by that employer, is denied, as a result of that probationary status, the protections of the LEOBR, irrespective of his or her certification status with the MPTC

I.

In December 1997, Andrew A. Mohan graduated from the Prince George's County Police Municipal Academy and was hired as a police officer by the Town of Edmonston Police Department. Before assuming duties with that department, Mohan was issued a provisional certification card by the Maryland Police Training Commission.¹ Mohan remained in this provisional status while an officer with the Town of Edmonston until September 1998, when he departed to join the Town of Cheverly Police Department. The MPTC issued Mohan a permanent certification card at this juncture.

On 7 January 2002, Mohan was hired by the Maryland Department of State Police ("State Police"), and received a permanent certification card from the MPTC for this new employment. Two days later, he signed an "Agreement" with the State Police outlining the terms of his employment, which included a 24 month probationary period.² The probationary period, according to the Agreement, would be in effect during Mohan's further training at the Maryland State Police Academy and would continue after his assumption of regular duties with the State Police.

During this probationary period, Mohan was served on 29 July 2003 with two documents, each entitled "Maryland State Police Probationary Trooper Record of Disciplinary Action," charging him with violating various rules, policies, and procedures of the State Police. The documents informed Mohan that, as a result of the alleged infractions, he would be suspended summarily for a total of 11 days. Mohan requested that he be given a hearing on the charges pursuant to the rights outlined in the LEOBR, codified at the time at Md.Code (1957, 1996 Repl.Vol., 2001 Supp.), Art. 27, §§ 727-734D (recodified, without substantive change, at Md.Code (2003), §§ 3-101 — 3-113 of the Public Safety Article). His employer responded that the LEOBR excluded from its coverage probationary employees; therefore, Mohan was not entitled to its protections because, at the time of the alleged infractions, he was still a probationary employee of the State Police.

On 13 August 2003, Mohan filed in the Circuit Court for Prince George's County a complaint for an ex parte injunction and issuance of a show cause order against Colonel Edward T. Norris, then-Secretary of the Maryland State Police, and the Department.

871 A.2d 577

A show cause order was issued and an expedited hearing held. Through the efforts of the trial judge, an Assistant Attorney General representing Secretary Norris and the Department was notified and appeared for the hearing, though no written answer was filed. There appearing to be no dispute as to facts material to the case, the hearing proceeded upon oral argument of counsel on the question of law presented. The trial judge ruled from the bench that Mohan was a probationary employee, as defined by the State Police Act, Md.Code (1957, 1998 Repl.Vol.), Art. 88B, § 18 (recodified, without substantive change, at Md.Code (2003), § 2-403 of the Public Safety Article), and was therefore not entitled to the protections of the LEOBR. A confirming written order denying the injunctive relief was entered ultimately. The Court of Special Appeals affirmed the trial court's judgment. Mohan v. Norris, 158 Md.App. 45, 854 A.2d 259 (2004). Mohan petitioned this Court for a writ of certiorari, which we granted, 383 Md. 569, 861 A.2d 60 (2004), to consider the following question

Did the Court of Special Appeals err in determining that a police officer, permanently certified by the Maryland Police Training Commission, may nonetheless be excluded from the protections of the Law Enforcement Officer's Bill of Rights due to the officer's probationary status as imposed by a hiring agency?

II.

Mohan's question is one of statutory interpretation and, as such, is purely a matter of law. Salamon v. Progressive Classic Ins. Co., 379 Md. 301, 307, 841 A.2d 858, 862 (2004). Our standard of review, therefore, is de novo. Id.; see also Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78, 80-81 (2004) (stating that "[b]ecause our interpretation of ... provisions of the Maryland Code ... are appropriately classified as questions of law, we review the issues de novo to determine if the trial court was legally correct in its rulings on these matters").

III.

Three statutory schemes are the foci of our analysis in this case. At the center of the controversy is the Law Enforcement Officer's Bill of Rights ("LEOBR"), codified at the time of the proceedings below at Md.Code (1957, 1996 Repl.Vol., 2001 Supp.), Art. 27, §§ 727-734D (recodified, without substantive change, at Md.Code (2003), §§ 3-101-3-113 of the Public Safety Article).³ The LEOBR was enacted in 1974 as the nation's first comprehensive statutory scheme intended to provide certain procedural protections to "law enforcement officers," as that term is defined in the statute, during any investigation, charging, and subsequent hearing that could lead to disciplinary sanctions. Baltimore City Police Dep't v. Andrew, 318 Md. 3, 12, 566 A.2d 755, 759 (1989); see also Byron L. Warnken, The Law Enforcement Officers' Privilege Against Compelled Self-Incrimination, 16 U. Balt. L.Rev. 452, 489-98 (1987) (outlining the history and provisions of the LEOBR and chronicling the failed attempts in the U.S. Congress, prior to the enactment of the LEOBR in Maryland, to enact a national bill of rights for law enforcement officers). These procedural protections include, among others, the right to be informed in writing of the nature of an investigation prior to any interrogation, the right to reasonable limitations on the structure, time, and place of an interrogation, the

871 A.2d 578

right to a complete written or transcribed record of any interrogation, the right to be notified of the name of any witness and all charges and specifications against the officer not less than ten days prior to any hearing, and the right to a copy of the investigatory file and any exculpatory information. § 3-104. If an investigation results in the recommendation of some disciplinary or punitive action against a law enforcement officer, the LEOBR, with limited exceptions, entitles an officer to a hearing before a hearing board composed of at least three other police officers. § 3-107. Procedures governing the hearing include the right to cross-examination and the power of the hearing board to compel the attendance of witnesses through subpoenas. Id. If, after a hearing and a finding of guilt, the hearing board determines that a disciplinary or punitive sanction is appropriate, the board makes recommendations to the chief of police of the appropriate police agency, who then must review the recommendations and issue a final order within 30 days. § 3-108. A final order may be appealed to the local circuit court and, thereafter, to the Court of Special Appeals. § 3-109. If a law enforcement officer is denied any of the rights afforded by the LEOBR, he or she may apply to a circuit court for an order directing the law enforcement agency to show cause why a right should not be granted.⁴ § 3-105

In 1977, the Legislature amended the LEOBR in order to deal with the relationship between it and other statutes providing alternative remedies for police officers facing disciplinary sanctions. 1977 Md. Laws, Chap. 366; Moats v. City of Hagerstown, 324 Md. 519, 526-27, 597 A.2d 972, 975-76 (1991). The new section provided:

Except for the administrative hearing process provided for in [Article 41, § 4-201] concerning the certification enforcement power of the Police Training Commission,[⁵] the provisions of this subtitle shall supercede any State, county or municipal law, ordinance, or regulation that conflicts with the provisions of this subtitle, and any local legislation shall be preempted by the subject and material of this subtitle.

1977 Md. Laws, Chap. 366 (as amended by 1981 Md. Laws, Chap. 679) (recodified, without substantive change, at § 3-102). The Court in Moats relied on this language to conclude that the LEOBR was a law enforcement officer's "exclusive remedy in matters of departmental discipline." 324 Md. at 530, 597 A.2d at 977.

This "exclusive remedy," however, may be invoked only by a "law enforcement officer," who, at the time of the LEOBR's enactment, satisfies the definition of "any person who, in his official capacity, is authorized by law to make arrests and who is a member of" any of a number of statutorily recognized police agencies, including the State Police. 1974 Md. Laws., Chap. 722 (codified, without substantive change, at § 3-101(e)). In 1975, the statute was amended to exclude expressly from the LEOBR's coverage "an officer serving in a probationary status."⁶ 1975 Md. Laws, Chap. 809. That definition was further

871 A.2d 579

amended in 1977 to provide that the term...